92 Decision Citation: BVA 92-23834
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-54 130 ) DATE
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THE ISSUES
1. Entitlement to an increased rating for Perthes' disease
of the right hip, currently evaluated as 20 percent
disabling.
2. Entitlement to an increased rating for coxa vara of the
left hip with associated degenerative changes and left leg
shortening, currently evaluated as 20 percent disabling.
3. Entitlement to an increased rating for degenerative
changes of the lumbosacral spine, currently evaluated as
20 percent disabling.
4. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from February 1960 to
February 1963, and from October 1967 to March 1969. This
matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from an August 1990 rating
action of the St. Petersburg, Florida, Regional Office
(hereinafter RO) which denied evaluations in excess of
20 percent for the veteran's service-connected back and
bilateral hip disabilities and a total disability rating
based on individual unemployability due to service-connected
disabilities. A notice of disagreement was received in
January 1991, and a statement of the case was issued in
March 1991. A substantive appeal was received in April
1991. In September 1991, the veteran gave testimony at a
hearing on appeal conducted by the RO. A supplemental
statement of the case was issued in October 1991. The
appeal was received and docketed at the Board in January
1992. The appellant has been represented throughout his
appeal by the Disabled American Veterans.
REMAND
The veteran contends, in effect, that his service-connected
back and bilateral hip disabilities have increased in
severity and are more disabling than currently evaluated.
He also asserts that his service-connected disabilities have
rendered him unable to secure or follow a substantially
gainful occupation, thus warranting assignment of a total
disability rating based on individual unemployability.
The veteran, through his representative, has contended that
he currently suffers from arthritis of the cervical spine
which is part and parcel of the systemic, degenerative
arthritic disease process affecting his lumbosacral spine
and hips and for which he is already service connected. He
also asserts that he suffers from an acquired psychiatric
disorder which is secondary to his service-connected back
and bilateral hip disabilities. The United States Court of
Veterans Appeals (hereinafter the Court) has held that a
claim which is inextricably intertwined with a pending claim
must be adjudicated prior to a final order with respect to
the pending claim. Harris v. Derwinski, 1 Vet.App. 180
(1991). Thus, the issues of entitlement to secondary
service connection for arthritis of the cervical spine and
an acquired psychiatric disorder must be adjudicated prior
to an appellate decision on the issue of entitlement to a
total disability rating based on individual unemployability
due to service-connected disabilities. The grant of service
connection for additional disorders would materially affect
the issue of whether the veteran is entitled to individual
unemployability benefits.
The VA also has a duty to assist the veteran in the
development of facts pertinent to his claim. 38 U.S.C.A.
§ 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1991). The
Court has held that the duty to assist the veteran in
obtaining and developing available facts and evidence to
support his claim includes obtaining medical records to
which the veteran has referred and obtaining adequate VA
examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990).
This duty includes obtaining an additional VA examination by
a specialist, when recommended. Hyder v. Derwinski,
1 Vet.App. 221 (1991). Through his representative, the
veteran has requested that the medical records underpinning
his award of Social Security Administration disability
benefits be secured and associated with the claims folder.
In Masors v. Derwinski, 2 Vet.App. 181 (1992), the Court
held that the duty to assist the veteran under the
provisions of 38 U.S.C. § 5107(a) includes an obligation to
obtain the records underpinning a Social Security
Administration decision awarding disability benefits to the
veteran. It has also been requested that records of
treatment of the veteran at the Triage Center, Fort Myers,
Florida, be obtained and associated with the claims folder.
The veteran has also contended that the RO failed to
consider his claim for individual unemployability benefits
in light of the provisions of 38 C.F.R. § 4.10 (1991). He
also states that the VA examination of July 1990 and VA
outpatient examination of April 1991 were inadequate, in
that active range of motion studies of the hips and legs
were not performed.
The VA has a duty to acknowledge and consider all
regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusion. Schafrath v.
Derwinski, U.S. Vet.App. No. 89-114 (November 26, 1991).
These regulations include, but are not limited to, 38 C.F.R.
§§ 4.1 and 4.2 (1991). Also, 38 C.F.R. § 4.10 provides that
in cases of functional impairment, evaluations must be based
upon lack of usefulness of the affected part or systems, and
medical examiners must furnish, in addition to the
etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical
classification, full description of the effects of the
disability upon the person's ordinary activity. 38 C.F.R.
§ 4.40 (1991) requires consideration of functional
disability due to pain and weakness. These requirements for
the evaluation of the complete medical history of the
claimant's condition operate to protect claimants against
adverse decisions based upon a single, incomplete, or
inaccurate report, and to enable the VA to make a more
precise evaluation of the level of the disability and of any
changes of the condition. Schafrath slip op. at 6-9. Under
the circumstances of this case, we find that additional
development is required, and the case is REMANDED to the RO
for the following:
1. The veteran should be contacted and
asked to sign and submit an appropriate
form giving his consent for the release
to the VA of all records of treatment at
the Triage Center, Fort Myers, Florida.
When the consent form is received, the RO
should contact that medical facility and
request them to furnish copies of all
records of treatment of the veteran
subsequent to May 1991. In addition,
radiographic reports of his back and
bilateral hip disorders should also be
obtained. All records obtained should be
associated with the claims folder.
2. The RO should contact the Social
Security Administration and obtain a copy
of the Social Security decision awarding
disability benefits to the veteran, as
well as copies of all underlying medical
records upon which the decision was
based. All records obtained should be
associated with the claims folder.
3. Thereafter, the veteran should be
afforded a special VA neurological
examination to evaluate his complaints of
radiating pain and the relationship, if
any, to his service-connected
disabilities. He should also be afforded
an orthopedic examination to determine
the extent and degree of severity of his
service-connected bilateral hip disorder
and lumbosacral spine disorder and
whether the veteran has arthritis of the
cervical spine. Such tests as the
examining physician deems necessary,
including active range of motion studies
of both hips and lumbosacral spine and
X-rays of the cervical spine, should be
performed. The examiner should render an
opinion for the record as to whether any
cervical spine arthritis is secondary or
otherwise etiologically related to the
veteran's service-connected degenerative
arthritis affecting his lumbosacral spine
and hips. The claims folder should be
made available to the examining
physicians prior to the examinations so
that he may review pertinent aspects of
the veteran's past medical history.
4. The veteran should be afforded a
special VA psychiatric examination to
determine whether he has an acquired
psychiatric disorder which is secondary
to his service-connected disabilities.
Such tests as the examining physician
deems necessary should be performed. The
claims folder should be made available to
the examiner prior to the examination so
that he or she may review pertinent
aspects of the veteran's past medical and
psychiatric history.
5. Thereafter, the RO should adjudicate
the issues of entitlement to secondary
service connection for any cervical spine
arthritis and acquired psychiatric
disorder.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claims for
increased ratings for his back and bilateral hip
disabilities, and for individual unemployability benefits
may now be granted. If not, he and his representative
should be furnished an appropriate supplemental statement of
the case, and the case should be returned to the Board for
further appellate consideration.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M.D. I. S. SHERMAN
*
(Member temporarily absent)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).